Juvenile Justice Act, 2015: Though offences POCSO and Murder have been proved accused acquitted based on procedural illegalities

Challenge against the dismissal of criminal appeal by the Hon’ble High Court

2. This appeal takes exception to the judgment dated 15th April, 2021, passed by the learned Single Judge of the High Court of Judicature at Madras dismissing the criminal appeal filed by the appellant herein under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and affirming the conviction of the appellant and sentences awarded to him vide judgment and order dated 18th February, 2019, passed by the Court of Sessions Judge, Mahila Court, Salem (hereinafter being referred to as the ‘trial Court’) in Special Sessions Case No. 279 of 2016. By the said judgment and order, learned trial Court convicted and sentenced the appellant as below: –

Section 363 IPC Sentenced to undergo 07 years rigorous imprisonment.

Section 342 IPC Sentenced to undergo 01 years rigorous imprisonment.

Section 6 POCSO Act Sentenced to undergo 10 years rigorous imprisonment.

Section 302 IPC Sentenced to undergo 10 years rigorous imprisonment.

Section 201 read with 302 IPC

Sentenced to undergo 07 years rigorous imprisonment.

Observation of the Trial court after the conviction

3. The trial Court in para 96 of its judgment held as under: –

“96. Accused is now 19 years 2 months old. Therefore, according to Section 20 Juvenile Justice (Care and Protection of Children Act), Juvenile in conflict with law shall be kept in a safe place in Chengalpattu Juvenile Reform School till the age of 21 years. After that, the Probation Officer should evaluate the reformation of the said child and send a periodic report about it to this Court. After the completion of 21 years, the said child shall be produced in this Court and after evaluating whether the child has reformed, became a child who can contribute to the society, the remaining sentence may be reduced and released, or if the child is not reformed, the remaining sentence should be spent in jail after the child reaches the age of 21, considering the report of the Probation Officer and the progress records. The decision will be based on the discipline that the child has achieved and his behaviour.”

Facts of the case:

Child was not returned home from a shop and could not be traced hence fir registered

5. The victim Ms. D, being the daughter of the first informant- Mr. G(PW-1) aged 6 years went missing in the evening of 2nd July, 2016. Mr. G (PW-1) lodged a complaint at P.S. Kolathur, District Salem on 3rd July, 2016 at 7 ‘o clock in the morning alleging, inter alia that he had taken his daughter(victim) to a shop on the previous evening at around 6 o’ clock and from there, he asked the child to return home. However, when he reached his house half an hour later and made an inquiry from his wife, he was told that the child had not returned by then. A search was made in the locality but the child could not be traced out. Based on the said complaint, Crime No. 174 of 2016 was registered and investigation was undertaken by S. Viswanathan, Inspector of Police (PW-25).

Victim (deceased) was last found with accused

6. The Investigating Officer (PW-25) recorded the statements of Mylaswamy (PW-10) and Irusappan (PW-11) who stated that they had seen the accused going into the compound of his house with the child victim being the daughter of the first informant-Mr. G (PW-1). On this, the needle of suspicion pointed towards the accused-appellant who was apprehended from his house by the Investigating Officer (PW-25) while he was trying to run away. The accused was interrogated in presence of Mr. Arivazhagan, Village Administrative Officer (PW-15) and his assistant Muthappan.

Accused confessed and based on that dead body recovered and after post-mortem it is reported that it is homicide with injuries in the victim’s genitals

7. It is alleged that the accused confessed to his guilt and his admission was recorded in memo (Ex. P-20) and acting in furtherance thereof, the dead body of Ms. D was found concealed in a wide-mouthed aluminium vessel lying in the prayer room of the house of the accused. The requisite spot inspection proceedings were undertaken and the dead body of the child victim was sent to the Salem Government Mohan Kumaramangalam Medical College Hospital for conducting post mortem. The post mortem report (Ex. P-7) and final opinion of Doctor (Ex. P-8) were received indicating that the death of the victim was homicidal in nature having being caused by asphyxiation due to compression of neck along with injuries to genitalia. Some incised wounds were also found on the body of the victim. Incriminating articles viz., clothes of the accused, a blade, etc. were recovered from the house of accused.

Accused was a child in conflict with law

8. Right at the inception of investigation, the Investigating Officer (PW-25) had gathered information to the effect that the accused was a juvenile since his date of birth recorded in school documents is 30th May, 2000. Thus indisputably, the accused was a Child in Conflict with Law (in short ‘CICL’) as provided under Section 2(13) of the Juvenile Justice(Care and Protection of Children) Act, 2015 (hereinafter being referred to as the ‘JJ Act’) and the proceedings were required to be conducted in accordance with the mandatory procedure prescribed under the JJ Act. In-spite thereof, charge sheet against the accused was filed directly before the Sessions Court (portrayed to be a designated Children’s Court, as per the counter affidavit filed by the State in the SLP).

Trial concluded in conviction

9. Charges were framed against the accused who pleaded not guilty and claimed trial. The prosecution examined 25 witnesses and exhibited 35 documents and 10 material objects to prove its case. The accused was questioned under Section 313(1)(b) of CrPC and was confronted with the circumstances appearing against him in the prosecution case. He denied the allegations levelled against him and claimed to be innocent. However, neither oral nor documentary evidence was led in defence. The trial Court proceeded to convict and sentence the accused as mentioned above, vide judgment and order dated 18th February, 2019.

Mother of the accused filed petition praying the sentence may be reduced

10. The mother of the accused appellant filed a petition before the Special Court, POCSO Act Cases, Salem praying that the sentence of her son may be reduced and he may be considered for early release in view of his good behaviour.

Special court dismissed the petition

11. The Special Court, POCSO Act Cases, Salem held an inquiry; conducted psychological evaluation of the accused; procured reports from the Vellore District Social Security Department Probation Officer and Probation Officer of Government Special Home as well as the individual evaluation report of the accused and after analysing the above reports, proceeded to dismiss the application filed by the mother of the accused appellant vide order dated 29th January, 2021.

High Court dismissed the appeal

12. Being aggrieved by his conviction and the sentences awarded by the trial Court, the accused appellant preferred an appeal being CRLA No. 451 of 2019 before the High Court of Judicature at Madras which came to be rejected vide impugned judgment dated 15th April, 2021. Hence this appeal by special leave.

Analysis

It is not disputed that the appellant was CICL (Child In Conflict with Law) because of the school record

23. The fact regarding the accused appellant being a CICL on the date of the incident, i.e., 2nd July, 2016 is not in dispute because the date of birth of the accused as entered in the contemporaneous school record is 30th May, 2000.

27. Thus, there is no escape from the conclusion that even before the result of investigation was filed, the fact regarding the accused being a CICL was well known to the Investigating Officer (PW-25), the prosecution and the trial Court as well.

As per section 9(1) Magistrate who is not empowered to exercise the power of board shall without any delay forward the child to board having jurisdiction

29. The provisions contained in Section 9(1) stipulate that when a Magistrate not empowered to exercise the power of the Board under the Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

Though charge sheet was filed before the Special court it has no option except to forward the child to the concerned board for further directions

31. In the present case, the situation is very stark inasmuch as, even when the charge sheet was filed, the Investigating Officer had clearly recorded that the date of birth of the accused was 30th May, 2000, and hence, even assuming that Sessions Court at Salem had been designated as a Children’s Court, there was no option for the said Court but to forward the child to the concerned Board for further directions.

Procedure before the Board if the offence is heinous

32. There is no dispute on the aspect that the offences of which the accused appellant was charged with, fall within the category of ‘heinous offences’ as defined under Section 2(33) of the JJ Act. Section 15(1) provides that in case where a heinous offence/s are alleged to have been committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence. The Board, after conducting such assessment, may pass an order in accordance with the provisions of sub-section (3) of Section 18 of the JJ Act. Section 15(2) provides that where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial of summons case under CrPC. Under first proviso to this sub-section, the order passed by the Board is appealable under Section 101(2) of the JJ Act.

Board has to decide whether the child to be tried as an adult by special court as per section 18(3)

33. Section 18(3) provides that where the Board after preliminary assessment under Section 15 opines that there is a need for the said child to be tried as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

As per section 19(1) Children’s court may further decide if there is a need for trial as an adult or not

34. By virtue of Section 19(1), the Children’s Court, upon receiving such report of preliminary assessment undertaken by the Board under Section 15 may further decide as to whether there is a need for trial of the child as an adult or not.

Sections 15 and 19 are mandatory

35. The procedure provided under Sections 15 and 19 has been held to be mandatory by this Court in the case of Ajeet Gurjar v. State of Madhya Pradesh [2023 SCC Online SC 1255]. In the said case, this Court considered the import of Section 19(1) of the JJ Act and held that the word ‘may’ used in the said provision be read as ‘shall’. It was also held that holding of an inquiry under 19(1)(i) is not an empty formality. Section 19(1)(ii) provides that after examining the matter, if the Children’s Court comes to the conclusion that there is no need for trial of the child as an adult, instead of sending back the matter to the Board, the Court itself is empowered to conduct an inquiry and pass appropriate orders in accordance with provisions of Section 18 of the JJ Act. The trial of a child as an adult and his trial as a juvenile by the Children’s Court have different consequences.

Flagrant violation of not following mandatory requirements of sections 15 and 19

37. As can be seen from the facts of the present case, there has been a flagrant violation of the mandatory requirements of Sections 15 and 19 of the JJ Act. Neither was the charge sheet against the accused appellant filed before the Board nor was any preliminary assessment conducted under Section 15, so as to find out whether the accused appellant was required to be tried as an adult.

Absence of preliminary assessment being conducted under sections 15(1) and 18(3) vitiates trial

38. In absence of a preliminary assessment being conducted by the Board under Section 15, and without an order being passed by the Board under Section 15(1) read with Section 18(3), it was impermissible for the trial Court to have accepted the charge sheet and to have proceeded with the trial of the accused.

39. Thus, it is evident that the procedure adopted by the Sessions Court in conducting the trial of the accused appellant is de hors the mandatory requirements of JJ Act.

40. Thus, on the face of the record, the proceedings undertaken by the Sessions Court in conducting trial of the CICL, convicting and sentencing him as above are in gross violation of the mandate of the Act and thus, the entire proceedings stand vitiated.

39. Thus, it is evident that the procedure adopted by the Sessions Court in conducting the trial of the accused appellant is de hors the mandatory requirements of JJ Act.

Judgment analyzing

45. In the above two referred cases [Karan alias Fatiya v. State of Madhya Pradesh [(2023) 5 SCC 504] and Pawan Kumar v. State of Uttar Pradesh & Ors [2023 SCC OnLine SC 1492]], the situation presented was that the factum regarding the accused being a child within the meaning of the JJ Act came to light at a very late stage i.e. after final decision of the cases and hence both these cases are clearly distinguishable from the case at hand.

Remanding back does not create any possibility to find out the mental and physical capacity of the accused

48. At this stage, there remains no realistic possibility of finding out the mental and physical capacity of the accused appellant to commit the offence or to assess his ability to understand the consequences of the offence and circumstances in which he committed the offence in the year 2016.

49. Since we have held that the entire proceedings taken against the appellant right from the stage of investigation and the completion of trial stand vitiated as having been undertaken in gross violation of the mandatory requirements of the JJ Act, we need not dwell into the merits of the matter or to reappreciate the evidence available on record for finding out whether the prosecution has been able to prove the guilt of the appellant by reliable circumstantial evidence.

Accused acquitted.

Party

THIRUMOORTHY ….APPELLANT(S) VERSUS STATE REPRESENTED BY THE INSPECTOR OF POLICE …RESPONDENT(S) – CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl.) No(s). 1936 of 2023) – March 22, 2024

https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=390802022&type=j&order_date=2024-03-22

illegalities, procedural illegalities, procedural irregularities, juvenile justice, acquittal juvenile,

Further study

• Juvenile: Whether after the trial is over, if accused found to be juvenile the court would set aside the sentence or shall sent to juvenile justice board?
• Juvenile Justice Act – Life Sentence – No bar.
• The Juvenile Justice Care and Protection Of Children Act, 2000 – An Analysis (Having Deep Connection With Juvenile Justice (Care And Protection Of Children) Act, 2015)
• SECTION 41 Cr.P.C – ARREST IS THE PREROGATIVE OF POLICE AND NOT MANDATORY EVEN AFTER DISMISSAL OF ANTICIPATORY BAIL
• Juvenile Justice act: Issue of Juvenility can be claimed even before the Hon’ble Supreme court